Work from home guidance to end

Employers are not bound by any statutory responsibility for employees’ journey to and from their place of work. Likewise, an employer’s common law duty to take reasonable care for the health and safety of employees does not normally apply to commuting.

Employers do however have an implied duty not to act in a manner that is calculated or likely to destroy the relationship of trust and confidence; where it does, an employee can claim to have been constructively dismissed. Some employees are therefore likely to argue that where an employer fails to have regard to the risks associated with commuting on public transport during the pandemic, this amounts to a breach of their duty. Whether or not employment tribunals are sympathetic to such an argument, however, is unclear at present.

Given that the government’s official guidance is now changing so that employees are no longer encouraged to work from home alongside clear guidance on the use of public transport which recognises it as safe, subject to following certain guidance (wearing face masks, social distancing, etc) one would expect it would be difficult for an employee to succeed with such an argument other than in exceptional circumstances. The sensible approach to any concerns raised by employees would be to listen to them and then take the employee through the guidance and reassuring them that there was no serious risk to their health and safety. If more caution is felt to be appropriate, there is always the option to agree to temporary arrangements such as adjusting start and finish times and providing extra car parking in specific cases.

Employees have statutory protection from being dismissed or suffering a detriment for refusing to attend work where they have a reasonable belief that they are in “serious and imminent” danger. Crucially, the issue isn’t whether the employer disagrees that the employee is in serious and imminent danger but whether the employee’s opinion is reasonable in the circumstances. Where they believe this to be the case, they can claim full pay whilst remaining at home. Whether an employee is able to succeed with such an argument will depend on factors such as the number of COVID-19 cases in the workplace and the extent of measures taken by employers to minimise the risk of contracting COVID-19.

The best way for an employer to minimise the chances of an employee arguing that they genuinely had reasonable grounds to believe there was a serious and imminent danger, is to adopt a thorough approach to health and safety. Employers should also engage in a thorough discussion with employees who raise concerns which should involve asking them to specify precisely what concerns they have and where they consider the risk may come from. They should then seek to reassure them by explaining what steps have been taken to minimise those risks in an attempt to make it harder for them to demonstrate it was reasonable to believe they were in serious and imminent danger.

Shielding ended on 1st April 2021 and the most current guidance states that where clinically extremely vulnerable employees cannot work from home they should go to work. Until we see the detail, at present, the changes to the work from home guidance don’t provide any specific details in relation to people who previously fell within the shielding guidance.

It should be remembered that employers do owe employees a duty of care to protect their health and safety. with that in mind, employers should consult with employees who fall within this category with a view to understanding what risks they may be exposed to and look at what measures can be taken to protect them. Employees who fall within this category are potentially more likely to be able to demonstrate that they reasonably believed they would face “serious and imminent danger” if they were to return to work. Employers should also bear in mind that many clinically vulnerable employees may fall within the definition of a disabled person under the Equality Act 2010 which triggers the duty to make reasonable adjustments. Added to this, a requirement to return to work could amount to an act of indirect disability discrimination as a provision, criteria, or practice (PCP) which puts them at a disadvantage to a non-disabled person. Employers may therefore need to have objective grounds to justify the requirement for a disabled employee to return to work rather than continue to work from home.

The government guidance relating to pregnant employees states that those who are under 28 weeks pregnant must undergo a workplace risk assessment with the employer and occupational health team in order to check whether it is safe for them to return to work. They should then only return to work provided the assessment states it is safe to do so (i.e. the employer is able to manage or remove any risks). For employees who are over 28 weeks pregnant (or if they suffer from a medical condition that puts them at a greater risk of severe illness from COVID-19), employers must comply with the government guidance on pregnant women who are clinically extremely vulnerable and social distancing guidance. This may result in having to redeploy them to another role or allow them to continue working from home. If it isn’t possible for them to work from home and they aren’t eligible for furlough, they are entitled to be suspended on full pay.

An individual in this scenario should be treated in the same way as if they were unable to work in a non-COVID-19 environment. This involves obtaining a clear understanding of their condition and its effect on their ability to attend work / perform their role. This usually involves obtaining a report from an occupational health practitioner. It is possible that their condition may meet the definition of a disabled person under the Equality Act 2010 which will trigger the duty to consider making reasonable adjustments. A report may make recommendations regarding an individual’s ability to return to work which should then be considered and discussed with the employee before being implemented. Only in the event that there was evidence to suggest that there was no likelihood of a return in the foreseeable future (after having made any reasonable adjustments) should dismissal or disciplinary action be contemplated.

If the employee has more than one year’s continuous service, they may request up to 4 weeks of unpaid parental leave. Alternatively, they could remain on furlough if applicable. The important point to bear in mind however is an employee’s right to take emergency dependent leave. The right allows the employee a reasonable period of unpaid time off to make alternative arrangements for care. How long is considered reasonable is often the source of frustration amongst employers. Normally it may be a few days but in the current climate, however, it is not unreasonable to expect employment tribunals to adopt a sympathetic approach to employees who are dismissed for not returning to work quickly enough which could result in a finding of automatic unfair dismissal.

Employers should therefore try to get an understanding of the employee’s support network and nature of care support required in an attempt to establish what might be a reasonable period of time to make alternative care arrangements. A common approach being taken by employers is to give employees several weeks’ advance notice of the fact they will be required to return to work. With the aim to minimise the likelihood of employees being unable to make arrangements for childcare and also means that it ceases to be a sudden or unexpected situation making it harder for them to justify the need to take time off.

This is a complex issue fraught with potential difficulties. It will be compulsory for employees who work in Care Quality Commission-regulated care homes but presently there are no plans to expand this other than to NHS and domiciliary care workers. Dismissing employees with more than 2 years’ continuous service could result in claims for unfair dismissal unless employers can demonstrate reasonable grounds to dismiss. These could potentially include arguing that vaccinations are the most reasonably practicable way of mitigating the risks of COVID-19 and in the absence of agreement from employees, dismissal could take place on health and safety grounds. In reality however whilst this may be justified in healthcare settings, it is likely to be harder in most others. There may be an argument that it is necessary for overseas working or to establish customer confidence in settings such as retail or hospitality. Generally, however, a policy of this nature is not without considerable risk for most employers.

There are also other considerations such as whether such a policy would be discriminatory on the grounds of age as it is harder for younger employees to have had both vaccinations at present and disability, where some employees with specific medical conditions have not been vaccinated.

In order to have any chance of justifying this type of policy, employers would need to show that they had considered all options short of dismissal such as PPE, regular testing, redeployment, and working from home to name a few.

There are then also GDPR considerations as a person’s vaccination status is likely to fall within “special category data”. Employers would need to rely on a lawful processing ground to hold this type of data and would need to carry out a full impact assessment before doing so.

Most employers will have to address a number of the above issues whilst at the same time, manage the softer HR issues associated with a workforce returning to work after such an unprecedented absence from the workplace. Now is the time for employers to start planning for the return of their workforce.  This should consider which of the above issues may apply to them and get a clear understanding of their rights and options as an employer so they are ready to respond swiftly and effectively to these issues. Otherwise, many will get bogged down in red tape and time-consuming discussions with staff which could result in disagreement and distraction from the day-to-day operations of running a business.